CITATION: R. v. Giraldo-Vargas, 2016 ONSC 8117

COURT FILE NO.: 8/16

DATE: 20161223

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

Appellant

– and –

CHRISTIAN GIRALDO-VARGAS

Respondent

Steven K. Stauffer

for the Appellant

Sunita Malik

for the Respondent

HEARD: December 12, 2015

THEN J.:

1The respondent was convicted on November 19, 2014, by a Provincial Court judge of one count of sexual assault involving the digital penetration of a complainant who was asleep due to intoxication. The Crown, having proceeded by way of summary conviction, the judge sentenced the accused to a conditional sentence of 5.5 months, to probation for two years, to a s.110 prohibition order for 10 years, a DNA databank order and a SOIRA order for 10 years.

2The Crown appeals the sentence imposed on the basis that in the circumstances of this case by imposing a conditional sentence the trial judge erred in principle, and accordingly, imposed a sentence which was demonstrably unfit. The Crown submits that a sentence of incarceration in the range of 6-9 months constituted a fit sentence in the circumstances of this case. The Crown does not otherwise challenge the ancillary orders that were made.

3By way of factual background, both the respondent and the complainant attended a birthday party at the home of a fellow member of a dance company. Both were in their early 30s and were acquaintances, not close friends. The complainant had become intoxicated and went to lie down in the host’s bedroom where the guests had left their coats and belongings. The complainant was sound asleep but awoke to the sensation of being digitally penetrated. She observed the respondent behind her and immediately complained regarding the offence. The complainant had previously removed her underwear in order to avoid a panty line.

4With respect to the offence the trial judge acknowledged several aggravating features including the vulnerability of the complainant due to intoxication, the nature of the offence involving digital penetration and that the offence had a significant impact upon the complainant. With respect to the offender the judge acknowledged several mitigating features including that the respondent was at age 31 a relatively youthful first offender, gainfully employed as a courier and a bartender and that he was a trained dancer, and that his family was extremely supportive.

5The trial judge also was aware that the respondent continued to protest his innocence and accordingly, was without remorse, and secondly, that as a landed immigrant from Colombia, was subject to deportation if convicted of an offence for which he received a sentence in excess of six months.

6The position of the Crown at trial was that the appropriate sentence was 12 months incarceration, with probation and several ancillary orders. The position of defence counsel was that a sentence of four to five months of incarceration as well as the ancillary orders as submitted by the Crown. It should be noted that the Crown on appeal now submits that the appropriate range of sentence is one of six to nine months incarceration as well as the ancillary orders already in place. It should also be noted that the respondent has served the conditional sentence imposed.

7In her reasons for sentence the trial judge stated the following:

When I spoke about specific deterrence, to that extent, also rehabilitation, Mr . Vargas is 31 years old. He has no prior record. There is no reason to believe that he needs rehabilitation to the same extent as someone in different circumstances. I think the receding, if you will, of specific deterrence goes hand in hand somewhat with rehabilitation and in my view the primary principles here are denunciation and general deterrence.

Having regard to the mitigating circumstances:

The absence of a criminal record , the fact that Mr. Giraldo-Vargas has family and community support, the fact that he is a contributing member of society, and also, in regard to the aggravating circumstances: the fact of digital penetration. In my view, a one year sentence proposed by the Crown is either outside the range of sentence having regard to the circumstances before the Court or if I am wrong on that, it is certainly at the very upper end given as I say that this was an offence of opportunity with no planning. It is fleeting. There was no position of trust, neither an employee/employer relationship nor a parent/child relationship. That is totally absent here. There is no huge disparity in age or social circumstances.

So, if one year is out of the range, what is the appropriate sentence? For me, the question is: having regard to the potential immigration consequence as well, is the five month sentence submitted by the defence out of the range and clearly having regard to the case of R. v. Nwaiku, the decision of MacDonnell, J., 2012, sitting as an appellate court, Justice MacDonnell upheld a five month sentence of imprisonment, not a conditional sentence, imprisonment, that was imposed on an offender who after trial was found guilty of sexual assault.

The circumstances are not dissimilar …

The defendant was 33, so again similar in age to Mr. Giraldo-Vargas, and the Crown proceeded summarily. The defendant in that case was like Mr. Giraldo-Vargas born outside of Canada and his immigration status was certainly in jeopardy.

The reasons for upholding the sentence are very brief and of course sitting as an appellate judge Justice MacDonnell recognized that the appellate court must defer to the sentencing decision at trial unless the appellate court is convinced that there is an error in principle and that the sentence was demonstrably unfit.

So, having upheld the sentence, clearly he did not find that the sentence was demonstrably unfit or that the trial judge in that case made an error in principle.

Having upheld that sentence, in my view, it is certainly an available sentence in the circumstances.

The next question for the Court to consider is if the court is going to impose a conditional sentence, the conditional sentence often is lengthier in duration in order to recognize that five months imprisonment is qualitatively different from a conditional sentence.

In these circumstances, counsel has asked that the Court impose a conditional sentence of five months.

MR. STAUFFER: I don't want to dissuade Your Honour from that if you are considering that but I was asking the Court to consider a custodial sentence. It was always on the basis of a custodial sentence …

THE COURT: Okay.

MR. STAUFFER: … but I don’t want to talk you out of that.

THE COURT: Okay, sorry, my mistake .

In the circumstances here, given the tremendous support that Mr. Giraldo-Vargas has in the community. I know that counsel's position is for a custodial sentence, and certainly a conditional sentence is a sentence of imprisonment, one that he is permitted to serve within the community, I have decided to impose a conditional sentence. In the normal course, I would have been inclined to increase the conditional sentence to give effect to what I was just referring to, the fact that there is a qualitative difference, and often if the Court is deciding between a term of imprisonment and a conditional sentence, a conditional sentence often might be increased to give effect to that.

However, in these unusual circumstances, given the immigration consequences, if I were to impose, and there has been a recent case law from the Court of Appeal to that effect, if I were to impose a sentence of six to seven months which would have been entirely appropriate as a conditional sentence, that will undermine and have a detrimental impact on Mr. Giraldo-Vargas's immigration status. I feel compelled under R . v. Pham to take that into account in fashioning an appropriate sentence, and again come back to R. v. Nwaiku being within the range of available sentences.

So, Mr. Giraldo-Vargas, if you can stand, sir.

I am imposing a conditional sentence of five and a half months.

8The appellant advances the following grounds of appeal.

A. The learned trial judge erred in principle in failing to consider the preconditions for imposing a conditional sentence under s.742.1(a).

B. The learned trial judge erred in principle by failing to give adequate weight to the principles of deterrence and denunciation warranted by the nature of the offence and the aggravating factors.

C. The learned trial judge erred in principle by determining the range of sentence in order to accommodate potential collateral immigration consequences and thereby imposing a sentence which was demonstrably unfit.

Analysis

Analysis

9It is now axiomatic that an appellate court on an appeal against the sentence imposed by the trial court must defer to the trial court. In R. v. M.(C.A.), [996] 1 S.C.R. 500 at paragraph 90 the Supreme Court stated:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

10Accordingly, this instruction from the Supreme Court must permeate an assessment of the grounds of appeal.

Failure to Consider Preconditions of a Conditional Sentence

A. Failure to consider the Preconditions of a Constitutional Sentence.

11Section 742.1(a) of the Criminal Code allows for the imposition of the conditional sentence where:

the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

12Nowhere in her reasons for sentence does the trial judge specifically address in the context of the imposition of a conditional sentence whether the respondent would be a danger to the community or whether a conditional sentence is consistent with the fundamental purposes or principles of sentencing.

13In R. v. Wells, 2000 SCC 10, [2000] S.C.J. No. 11 the Supreme Court has made it clear that a comprehensive consideration is required by the trial judge to determine whether a conditional sentence would be consistent with the principles of sentencing at paragraph 29:

… the second and most substantial stage of the analysis involves the determination of whether a conditional sentence would be consistent with the fundamental purpose and principles set out in ss. 718 to 718.2. Unlike the more cursory review of the purpose and principles of sentencing at the preliminary stage, this second stage requires a comprehensive consideration of these principles and objectives. It is this comprehensive consideration which guides the sentencing judge in determining (i) whether the offender should serve the sentence in the community or in jail, (ii) the duration of the sentence, and, if a conditional sentence, (iii) the nature of the conditions to be imposed.

(Emphasis Added)

14In my view the failure to do so seriously tends to undermine the deference which this court should give to the conditional sentence imposed in this case for several reasons. First, the trial judge has not explained why she rejected the submissions of both the Crown and of defence counsel that a sentence of incarceration was an appropriate sentence in the circumstances of this case especially when she did not give counsel the opportunity to submit that a conditional sentence was inappropriate.

15Secondly, the position of counsel was ostensibly informed by authorities prepared for her consideration which uniformly make the point that conditional sentences do not have the same denunciatory effect as a period of actual imprisonment with respect to offences of sexual assault involving vulnerable unconscious or semi-conscious complainants and accordingly invariably attract terms of incarceration based on the principles of deterrence and denunciation save in the most exceptional cases: See: R. v. Smith, 2015 ONSC 4304, [2015] O.J. No. 3513 paragraph 36; R. v. Nwaiku, [2012] O.J. No. 28 paragraph 28; R. v. Micula, [2016] O.J. No. 4108, paragraph 16; R. v. D.G.,2011 ONCJ 116, [2011] O.J. No. 1188 paragraph 19; R. v. R.A.R., 2000 SCC 8, [2000] S.C.J. No. 9, paragraph 3, 29, 34-35; R. v. Wells, 2000 SCC 10, [2000] S.C.J. No. 11 paragraph 47).

16There is no explanation based on the principles of sentencing offered by the trial judge as to why a term of incarceration as advanced by both counsel and supported as appropriate by the authorities relied on by counsel was rejected or indeed, why a conditional sentence was preferred save a reference to the strong support enjoyed by the respondent from his family. I conclude that given the approach of the trial judge to the imposition of a conditional sentence very little deference should be afforded and that a reconsideration of the sentence is warranted.

Weight Given to Deterrence and Denunciation

B. Failure to give sufficient weight to the principle of deterrence and denunciation warranted by the nature of the offence and the aggravating factors.

17In her reasons for judgment the trial judge recognized that digital penetration of an unconscious and therefore vulnerable complainant which caused significant emotional and psychological impact was a serious offence with aggravating features but failed to apply those principles and features in assessing whether a conditional sentence was consistent with the fundamental principles of sentencing.

18In her reasons for judgment it is evident that the trial judge relied heavily on the judgment of MacDonnell J. in R. v. Nwaiku, supra, in determining that the appropriate range of a conditional sentence was five months even though a sentence of five months incarceration was upheld in that case. I agree with the trial judge that Nwaiku, supra, should have been relied on by the trial judge. However, given the strong similarity of the facts in Nwaiku, supra, and the case at bar, acknowledged by the trial judge, Nwaiku is important not so much because it establishes a range of sentence but because it establishes that the proper application of the sentencing principles of deterrence and denunciation in cases of sexual assault involving digital penetration on unconscious complainants resulting in significant impact on complainants requires a sentence of incarceration.

19In imposing a sentence of five months incarceration in Nwaiku, the trial judge stated:

A conditional discharge would not be in the public interest. It would not sufficiently address denunciation and deterrence in a case such as this, which I see as a serious one. I have considered the immigration implications of a sentence other than a discharge, but I must say that such implications must not abrogate the necessity of addressing denunciation and deterrence.

20MacDonnell J. on appeal agreed and stated the following at paragraph 28:

28. In substance, the trial judge concluded that a discharge in this case would be inconsistent with the fundamental purpose and principles of sentencing. Bearing in mind the predatory nature of the assault he committed on the complainant and the significant emotional and psychological impact that it had on her, I am of the view that the trial judge's conclusion that a discharge was outside of the appropriate range of sentence was correct.

21In my view it is clear that both the trial judge and the appellate judge in Nwaiku were of the view that the application of the appropriate sentencing principles required the imposition of a term of incarceration. However, the trial judge in the case at bar, in failing to explain how a conditional sentence is consistent with the sentencing principles of deterrence and denunciation given the application of those principles to the strikingly similar facts in Nwaiku, demonstrates the inadequate application of those principles in the case at bar. As well the trial judge was required to consider the principle in s.718(2)(b) of the Criminal Code that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.” but manifestly failed to do so notwithstanding her reliance on Nwaiku. In my view the trial judge erred in principle in failing to properly apply the principles of sentencing in imposing a conditional sentence.

Collateral Immigration Consequences

C. The learned trial judge erred in principle by determining the range of sentence in order to accommodate the potential immigration consequences and thereby imposing a sentence which was demonstrably unfit.

22In determining the effect of the length of a conditional sentence upon the potential immigration status of the respondent the trial judge stated the following:

In the normal course, I would have been inclined to increase the conditional sentence to give effect to what I was just referring to, the fact that there is a qualitative difference, and often if the Court is deciding between a term of imprisonment and a conditional sentence, a conditional sentence often might be increased to give effect to that.

However, in these unusual circumstances, given the immigration consequences, if I were to impose, and there has been a recent case law from the Court of Appeal to that effect, if I were to impose a sentence of six to seven months which would have been entirely appropriate as a conditional sentence, that will undermine and have a detrimental impact on Mr. Giraldo-Vargas’s immigration status. I feel compelled under R. v. Pham to take that into account in fashioning an appropriate sentence, and again come back to R. v. Nwaiku being within the range of available sentences.

So, Mr. Giraldo-Vargas, if you can stand, sir. I am imposing a conditional sentence of five and half months.

23In my view, what the trial judge appears to have done is to accommodate her concerns with the respondent’s potential immigration difficulties by not imposing a sentence within a range which normally would be imposed even if the appropriate sentence was a conditional sentence.

24The Supreme Court in R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100 has clearly stated that immigration or collateral consequences can be considered by a sentencing court within the appropriate range but must not be used to establish the appropriate range. At paragraphs 14-16:

The general rule continues to be that a sentence must be fit having regards to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of the responsibility of the offender.

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not de jure special range of sentencing options where deportation is a risk.

25At paragraph 18 the court concluded:

18 It follows that where a sentence is varied to avoid collateral consequences, the further the varied sentence is from the range of otherwise appropriate sentences, the less likely it is that it will remain proportionate to the gravity of the offence and the responsibility of the offender. Conversely, the closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the reduced sentence will remain proportionate, and thus reasonable and appropriate.

26In my view, the concern in this case is not that the appropriate range of a conditional sentence was varied to avoid collateral consequences but rather that the imposition of the conditional sentence as opposed to a custodial sentence was based on an error in principle and was accordingly demonstrably unfit as I have sought to demonstrate.

27Given the limitations of the summary election and notwithstanding the position of the Crown at trial that 12 months custody was appropriate, the Crown’s submission to this court is that the appropriate range of a fit sentence is that of six to nine months of custody without the collateral consequences. However, in the circumstances of this case the Crown also submits that this court could properly address the primary concerns of deterrence and denunciation and at the same time give appropriate consideration to collateral consequences by imposing a custodial sentence of six months less one day. The respondent submits that given the fact that the respondent has served the entirety of the sentence imposed at trial, if the court is of the view that a custodial term is appropriate the court should impose either a custodial term of five and one half months or, if so disposed, a custodial sentence of six months less one day and order a stay of the service of the remaining custodial portion of 14 days.

28In my view, given the position of the Crown, and given the sentence of 5 months imposed in Nwaiku, supra, in circumstances where the facts pertaining to the offender and the offence are very similar, I would vary the conditional sentence of five and one half months imposed at trial which has now been served and impose a sentence of five and one half months of incarceration with the same ancillary orders imposed by the trial judge with the result that the respondent will not be required to be incarcerated.

29Accordingly, the appeal is allowed, the sentence is varied to five and one half months of incarceration with the same orders as imposed by the trial judge.